An online court (OC), easing the burden on the Court of Appeal and ensuring the civil judiciary play their part in the management in the court service’s reform programme were named this week by Lord Justice Briggs as the three “urgent priorities” coming out of this review of the civil court structure.
The interim report said the OC was the “most radical” change. It could become the compulsory starting point for money claims worth up to £25,000 and would be designed “for use by litigants without lawyers”.
Briggs LJ said there was a “clear and pressing need” for the new court, with no “default assumption” that claims would need to be settled at trial, and with conciliation and management by ‘case officers’ – the new name for designated judicial officers.
The report was commissioned by the Lord Chief Justice and the Master of the Rolls in July 2015 to coincide with a programme for reform of the courts by Her Majesty’s Courts and Tribunals Service, to which Chancellor George Osborne committed investment in the Autumn Statement.
The core elements of HM Courts and Tribunal Service’s plans are to digitise the courts, reduce the reliance on buildings and allocate aspects of the work currently done by judges to court officials (case officers) under judicial supervision.
Briggs LJ said: “[The OC] provides the opportunity to use modern IT to create for the first time a court which will enable civil disputes of modest value and complexity to be justly resolved without the incurring of the disproportionate cost of legal representation.
“In my view, it offers the best available prospect of providing access to justice for people and small businesses of ordinary financial resources.”
The “true distinguishing feature” of the OC, he explained, was that it would be the first court ever to be designed “for use by litigants without lawyers”.
Briggs LJ said it was likely that the OC would begin by confining itself to money claims and would adopt a variant of the three-tier structure proposed by Civil Justice Council’s online dispute resolution working party last year:
• Stage 1 would consist of a “mainly automated process by which litigants are assisted in identifying their case (or defence) online in terms sufficiently well ordered to be suitable to be understood by their opponents and resolved by the court, and required to upload (i.e. place online) the documents and other evidence which the court will need for the purpose of resolution”.
• Stage 2 would involve a mix of conciliation and case management, mainly by a case officer, conducted partly online, partly by telephone, but probably not face-to-face.
• Stage 3 would consist of determination by judges, in practice district judges or deputy district judges, either on the documents, on the telephone, by video or at face-to-face hearings, but with no default assumption that there must be a traditional trial.
Briggs LJ said that among the advantages in the OC being a “separate court with separate rules”, would be that it would “insulate the OC from all the lawyerish and purely adversarial aspects of the culture of the civil courts”.
Briggs LJ said there was a “wide measure of agreement” that possession claims, claims for non-monetary relief such as injunctions, class claims and claims involving children should not be handled by the OC.
On the subject of personal injury claims, Briggs LJ said his provisional view was that they should also be excluded unless the small claims limit was raised to £5,000 so that claims under it could be included or claimants wanted to use the OC.
He backed the transfer some of judges’ more routine and non-contentious work to case officers supervised by judges, with a right to have their decisions reconsidered by a judge. This work would exclude “the final determination of contests as to substantial rights and duties”, and approval of settlements of claims on behalf of minors and other protected parties. Case officers would be civil servants.
There should be a stronger concentration of civil expertise among circuit and district judges, while all civil work with a regional connection should be tried in the regions, regardless of value, subject to very limited specialist exceptions such as patents.
This would mean increasing resources for some of the main regional trial centres so as to make them “true competitors with Londonfor the management and trial of large and complex civil cases”. The county court would also take on a greater share of the overall civil workload. “A way must be found to prevent the permanent loss of civil hours to meet the needs of urgent family cases,” the judge added.
There were “no easy answers” to the question of reducing the Court of Appeal’s workload, he said. Among the questions he asked were the value of having a right to renew an application for permission to appeal orally when it has been refused on paper, whether the thresholds for obtaining permission to appeal should be raised and whether the court’s focus should be mainly on second appeals.
The provisional plan is to complete the review by 31 July 2016. Consultation responses are requested by the end of February, so that the judge can conduct meetings thereafter, “leaving space to think and write in June and July”